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10
Court of Criminal Appeal 22 March 2007

Clarkson v Regina

[2007] NSWCCA 70

Also reported as (2007) 171 A Crim R 1
Fraud & dishonesty
CRIMINAL LAW CRIMINAL LIABILITY DEFENCE DURESS AND NECESSITY CRIMINAL LAW ELEMENTS OF OFFENCE

Citation: Clarkson v Regina [2007] NSWCCA 70
Court: New South Wales Court of Criminal Appeal
Date: 22 March 2007
Judges: Beazley JA, Sully J, Howie J

Background

The appellant was convicted by a jury in the District Court on 26 November 2004 of 16 offences in total: five counts of making false or misleading statements in passport applications under s 10(1)(a) of the Passports Act 1938 (Cth), seven counts under s 10(1)(b) of the same Act for making such statements in support of third-party passport applications, and four counts of personation under s 184 of the Crimes Act 1900 (NSW). Judge Hosking DCJ sentenced the appellant to a total of two years and four months imprisonment.

The appellant appeared in person in the Court of Criminal Appeal and filed 114 pages of written submissions, supplementary submissions, and oral argument, raising 48 grounds of appeal (many overlapping or repetitive). Alongside the criminal appeal, related proceedings in the Court of Appeal involved a stated case on eight questions of law and a prerogative writ application, all raising substantially the same issues.

The Court of Criminal Appeal heard the conviction appeal and the leave application against sentence together. The High Court later refused special leave on 11 December 2007.

  • Whether the trial judge erred in ruling the defences of duress and necessity unavailable, and in excluding evidence relevant to those defences
  • Whether the same conduct could be charged under different legislative provisions, even where a lesser offence might exist
  • Whether the trial judge misdirected the jury on the elements of the s 10(1)(b) Passports Act offences and the s 184 Crimes Act personation offence
  • Whether coincidence evidence was wrongly admitted in relation to the s 10(1)(b) counts
  • Whether the trial judge erred in refusing to order separate trials, given the appellant's claim that raising a defence in a joint trial would be prejudicial
  • Whether the appellant's physical illness (including sleep apnoea causing intermittent sleep during the trial) meant he was unfit to be tried, and whether the Mental Health (Criminal Procedure) Act 1990 (NSW) was engaged
  • Whether the trial judge erred in accumulating rather than imposing concurrent sentences
  • Whether the sentencing judge failed to account for the absence of remissions in the jurisdiction where the sentence was to be served, the time elapsed since the offences, or the conditions of protective custody

Decision

Conviction grounds: The Court dismissed all grounds of appeal against conviction. The trial judge's rulings excluding the defences of duress and necessity were upheld. On the question of whether the same conduct could be charged under multiple legislative provisions, the Court confirmed that the existence of a lesser offence under another Act is irrelevant to whether a prosecutor may proceed under a different provision.

Unfitness to be tried: The Court rejected the argument that the appellant's physical condition, including sleep apnoea that caused occasional sleep periods, engaged the unfitness-to-be-tried procedures under the Mental Health (Criminal Procedure) Act 1990 (NSW). The statutory scheme, as examined through the relevant authorities, was not triggered by physical illness of the kind described.

Jury directions and evidence: No error was established in the trial judge's directions on the elements of the passport and personation offences, nor in the admission of coincidence evidence. The refusal to order separate trials was also upheld.

Sentence: The Court granted leave to appeal against sentence but dismissed the appeal. It found no error in the judge's approach to accumulation of sentences, the assessment of totality, or the weight given to various sentencing factors. The sentencing remarks showed that the judge correctly characterised the appellant's attitude and criminality. The overall sentence of two years and four months was described by the Court as moderate, given the totality of the offending, the fact that the appellant was sentenced after a contested trial, and his lack of remorse.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence allowed
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a prosecutor is not precluded from charging conduct under one legislative provision merely because a lesser offence covering similar conduct exists in another Act.
  • Defences of duress and necessity remained unavailable on the facts of this case, and the trial judge's decision to exclude evidence directed solely at those defences was upheld.
  • Physical illness, including sleep apnoea causing intermittent sleep during trial, did not engage the unfitness-to-be-tried procedures under the Mental Health (Criminal Procedure) Act 1990 (NSW); that scheme is directed at mental, not physical, incapacity of the relevant kind.
  • No error was established in the sentencing judge's accumulation of sentences, and factors such as absence of remissions in the place of custody, time elapsed since the offences, and conditions in protective custody did not require specific adjustment on the facts as presented.
  • In dismissing both the conviction and sentence appeals, the Court treated the appellant's lack of remorse and the degree of planning and sophistication involved as relevant considerations supporting the sentences imposed.

Legislation and Cases Referenced

Legislation:
- Passports Act 1938 (Cth) ss 10(1)(a), 10(1)(b)
- Crimes Act 1900 (NSW) s 184
- Criminal Code Act 1995 (Cth)
- Crimes Act 1914 (Cth) Pt IB Div 6; ss 16, 16G, 20B, 20BA, 428E(1)(b)
- Mental Health (Criminal Procedure) Act 1990 (NSW) Pt 2; ss 5, 6, 7, 8, 10, 11, 14, 16, 17, 18, 22
- Mental Health Act 1990 (NSW) ss 3, 4, 10
- Evidence Act 1995 (NSW) ss 98, 101(2), 108
- Criminal Appeal Act 1912 (NSW) s 5A
- Criminal Procedure Act 1986 (NSW) ss 21(2), 29
- Crimes (Administration of Sentences) Act 1999 (NSW) s 265
- Road Transport (Driver Licensing) Act 1998 (NSW) s 22
- Jury Act 1977 (NSW) s 22

Key Cases:
- Brownlee v The Queen (2001) 207 CLR 278
- Eastman v The Queen (2000) 203 CLR 1
- Ebatarinja v Deland (1998) 194 CLR 444
- Kesavarajah v The Queen (1994) 181 CLR 230
- Pearce v The Queen (1998) 194 CLR 610
- R v Presser [1958] VR 45
- R v Hurley and Murray [1967] VR 526
- R v Loughnan [1981] VR 443
- R v Abusafiah (1991) 24 NSWLR 531
- R v Rivkin (2004) 59 NSWLR 284
- R v Ellis (2003) 58 NSWLR 700
- Taikato v The Queen (1996) 186 CLR 454
- Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
- Johnson v The Queen (2004) 78 ALJR 616